Egbert v. Boule

EXTENDING BIVENS TO FIRST AMENDMENT RETALIATION CLAIMS

Erik Egbert contends that because courts generally disfavor extending the Bivens framework beyond its initial application to unconstitutional searches and seizures, no cause of action exists for Boule’s retaliation claims under the First Amendment. Brief for Petitioner, Erik Egbert at 14–15. Specifically, Egbert notes that circuit courts that considered the issue always denied applying Bivens to the First Amendment context. Id. at 26. Citing the new standard from Nestlé USA, Inc. v. Doe, Egbert maintains that if courts have reason to doubt that Congress would support a private right of action, courts must refrain from creating the right themselves. Id. at 18. Moreover, Egbert argues that Congress’s general grant of federal question jurisdiction to federal courts does not allow courts to create new causes of action without specific congressional intent. Id. at 16. Egbert also posits that Boule’s claims present “special factors” that warrant hesitation, and therefore do not meet the Court’s high standard for extending Bivens as first discussed in Carlson v. Green. Id. at 25–26. For example, Egbert lists a “special consideration” that extending Bivens will expand the number and variety of potential defendants well beyond traditional law-enforcement officers, leading to increased litigation. Id. at 27. Thus, Egbert contends that courts would then have to analyze the subjective thoughts of these new potential defendants to assess retaliatory motives, creating an untenable situation for courts. Id. at 28.

Robert Boule responds that his claim does not present a new Bivens context because the Court assumed a similar First Amendment claim against federal Postal Service officers for “inducing prosecution in retaliation for speech” in Hartman v. Moore, thus making any would-be Bivens claim redundant here. Brief for Respondent, Robert Boule at 41. Moreover, Boule claims that the First Amendment manifestly bars law enforcement officers from retaliating against individuals based on speech claims. Id. Thus, Boule asserts that extending the Bivens framework here protects a fundamental constitutional right. Id. But even if his First Amendment claim presented a new context, Boule insists the claim still passes the Bivens analysis because no special factors exist here to warrant hesitation. Id. at 42. Boule also objects to Egbert’s concern that extension of the right will force courts to engage with subjective thought analysis to evaluate retaliation claims. Id. at 43. Boule notes that the Court extended Bivens to Fifth Amendment discrimination cases—which involve subjective determinations of intent—and found the requisite analysis straightforward, and the damages remedy judicially workable. Id. at 43–44. Boule similarly responds that Egbert exaggerates the concern about increasing the range of potential defendants for First Amendment claims. Id. at 44. Rather, Boule suggests that extending Bivens to the First Amendment context here applies only to retaliation claims by federal officers. Id.

BIVENS AND THE FOURTH AMENDMENT IN IMMIGRATION-ENFORCEMENT MATTERS

Egbert argues that despite Bivens’s normal application to Fourth Amendment issues, the Court should not extend the implied right of action here because doing so prevents CBP agents from enforcing immigration laws, which protect national security interests. Brief for Petitioner at 37. Egbert claims that CBP agents serve a fundamentally different purpose than local police officers. Id. Hence, Egbert argues, Title 8 of the United States Code (“Title 8”) accords them more authority to interrogate suspects and conduct warrantless searches. Id. Given their unique responsibilities, Egbert maintains that courts should not expose CBP agents to potential damages for mishandling a search or engaging with suspected illegal aliens. Id. at 38. Further, Egbert suggests that creating a cause of action here amounts to judicial overreach because the Constitution entrusts national security interests to the political branches. Id. at 29–30. Finally, Egbert adds that extending Bivens to this context defies legislative intent because Congress intentionally decided against creating any Title 8 damages actions against CBP agents Id. at 39.

Boule counters that the Bivens claim in this case does not involve immigration matters, and therefore the Court should extend Bivens because Egbert knew Boule was a U.S. citizen but assaulted him anyway on private property on American soil. Brief for Respondent at 31. Boule argues that when Egbert violated Boule’s Fourth Amendment rights, he did so while performing duties analogous to those of local law enforcement officers. Id. at 30–31. Therefore, Boule contends that the situation resembles other excessive force claims, for which courts routinely grant relief under Bivens. Id. at 30. Moreover, Boule contests Egbert’s claim that investigating personal property within the United States borders implicates a national security interest. Id. at 33. Because Egbert was not patrolling the border to prevent illegal immigration when the incident occurred, Boule claims that Egbert’s use of force did nothing to further national security. Id. at 34. Therefore, Boule urges that the Court deny Egbert deferential protection against a Bivens action. Id. Lastly, Boule adds that many U.S. citizens live near areas supervised by CBP agents, and therefore denying a Bivens action here would unfairly prevent those citizens from accessing the best form of constitutional redress available. Id.

AVAILABILITY OF ALTERNATIVE REMEDIES

Egbert explains that numerous alternative judicial and administrative remedies exist for citizens like Boule who claim injuries caused by retaliation or assault, thereby mitigating the need to extend Bivens beyond its narrow scope to either of his claims. Brief for Petitioner at 32. Egbert claims that state tort laws provide an adequate remedy for aggrieved parties. Id. at 33. In the First Amendment context, Egbert suggests that recognized state tort actions like defamation or interference with business operations would similarly redress Boule’s injuries. Id. at 33. For Boule’s Fourth Amendment claim, Egbert posits that Boule can seek an adequate administrative remedy directly from the Department of Homeland Security (“DHS”) for excessive use of force by one of the department’s employees. Id. at 40. Egbert also alleges that other federal statutes—such as the Privacy Act or the Federal Tort Claims Act (“FTCA”)—provide alternative damage remedies for retaliation and excessive use of force claims. Id. at 34. Ultimately, Egbert claims that other well-established legal mechanisms for redressing the injuries at issue here provide equally valid options for the Court, meaning that the Court need not extend Bivens to cover Boule’s injury. Id. at 32.

Boule counters that Egbert’s suggested administrative and legal remedies are either insufficient or unavailable, therefore necessitating that the Court retain Bivens and permit a cause of action for damages in this case. Brief for Respondent at 37, 44. Specifically, Boule responds that state tort actions do not obviate the need for Bivens because the Westfall Act (“Act”) bars his particular tort claim. Id. at 45. Boule asserts the Act bars his claim because Egbert was “acting within the scope of [his] employment.” Id. Boule further notes that DHS cannot offer an adequate administrative remedy because DHS’s regulations do not provide for a right or benefit to the victim, therefore leaving Bivens as the only remedy available. Id. at 40. Moreover, Boule contends that the FTCA cannot replace a Bivens action because the FTCA purposefully fails to provide a remedy for constitutional violations by government employees. Id. at 38. Boule argues that Congress deliberately rejected amending the FTCA to replace individual law enforcement officers with the government in actions alleging constitutional violations because Congress desired to maintain Bivens. Id. Boule concludes that neither the FTCA’s language nor its legislative history suggest that Congress meant to preclude the Bivens remedy in a parallel context, and thus, a Bivens action should be available here. Id. By denying a Bivens right of action, Boule claims that his injuries cannot be adequately redressed. Id. at 37, 44.